Page:Harvard Law Review Volume 32.djvu/281

245 INDIRECT ENCROACHMENT ON FEDERAL AUTHORITY 245 which, while not requiring the tax commissioners to assess railroad property on the basis of its earnings, clearly permitted them to do so. And it was quite evident that they had done so, for one road was valued at $6,000 per mile less than another, and the assessment of a previous year under the method then prevailing was nearly trebled imder the new statute. The decision in the two cases is that value is a matter of fact for the assessors to determine, and that the court will not upset that determination unless it is fraudu- lent. But the opinion in the Cleveland case unequivocally approves of the position that the value in fact is what the road would sell for, that this depends on the earnings, and that therefore the earnings may and should be considered in estimating that value. "The rule of property taxation," says Mr. Justice Brewer, "is that the value of the property is the basis of taxation." ^* "It does not mean," he adds, "a tax upon the earnings which the property makes, nor for the privilege of using the property, but rests solely upon that value." ®^ Then he states what value is: "But the value of property results from the use to which it is put and varies with the profitableness of that use, present and prospective, actual and anticipated. There is no pecuniary value outside of that which re- sults from such use. The amount and profitable character of such use determines the value, and if property is taxed at its actual cash value it is taxed upon something which is created by the uses to which it is put." *^ The opinion then goes on to say that "in the nature of things it is practically impossible — at least in respect to railroad property — to divide its value, and determine how much is caused by one use to which it is put and how much by another." ^^ The learned justice asks whether an interstate bridge, the value of which depends entirely pn interstate commerce, must "on that account be entirely relieved from the burden of state taxation." ^^ He assumes two such bridges, one between two large centers of population and the other between two hamlets, and inquires whether they must be valued at the same amount, in spite of the fact that one is obvi- ously worth much more than the other. "Will it be said that the taxation must be based simply on the cost, when never was it held " IS4 U. S. 439, 445, 14 Sup. Ct. Rep. 1122 (1894). » Ibid. M Ihid. »" Ibid. " Ibid., 439, 446.